Law, Critical Religion, and the Importance of Semantics

I often hear it said that the contributions of scholars in critical religion are “merely semantic”; that problematizing the category of religion and the meaning of the word “religion” an academic context has no bearing on the understanding of religion “on the ground”. The meaning of “religion”, many argue, is fluid and dynamic, and so the definition and approach of scholars studying it must reflect this. No single definition applies to “religion”, nor should there be, as people use the word to mean different things. In short, many argue that studying the idea of “religion”, and the implications of the word itself, have no real practicality beyond the academy.

I would like to offer a brief rebuttal to that argument, using as an example laws concerning “freedom of religion”. Provisions for freedom of religion have become the norm for Western democracies and their bills of rights (such as in the Canadian Charter of Rights and Freedoms and the First Amendment to the United States Constitution), but there are several reasons why these provisions might warrant re-examination. Below, I will draw from my knowledge of North American case law to demonstrate how critical religion may be invaluable to moving towards a more nuanced understanding of the issue.

If a citizen presents a case to Canadian (or American) courts claiming their right to freedom of religion was infringed, either by another citizen or by an institution, one of the first steps in the legal process is to determine if the claim is legitimate. If the plaintiff is not a member of a recognized religion, the court must first determine if their practices qualify as “religion”. Otherwise, a case for rights infringement cannot be made. How does the court determine whether the plaintiff’s religion qualifies as such in the eyes of the law? It does so by looking at the definition of the word “religion”.

One of the main problems lies in the fact that constitutional documents which proclaim freedom of religion in North America do not describe or define “religion”. In both Canada and the United States, the interpretation of “religion” has been left to the courts. These rely on two sources of information to form this interpretation. The first consists of previous and pertinent case law, if it exists. Secondly, the court calls upon expert witnesses who can attest to the legitimacy of a claim based on their academic knowledge of religion. It is the academic understanding, and not a common or “lay” understanding, of the category “religion” that is privileged.

Still, the Supreme Court of Canada has done its best to use expansive definitions; in the landmark 2004 case Syndicat Northcrest v Anselem, it ruled that religion “is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment [sic], the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.” The issue here is that, despite their best efforts to be inclusive, courts fail to realize that using vague language does not divest the concept of “religion” from its Christian and colonial history. Even the words “beliefs” and “faith” stem directly from a Christian rhetoric.

That the definition of “religion” is left up to the interpretation of courts has not shown to have a substantial impact on traditional religions like Protestant Christianity, because they are easily recognizable as “religion”. However, the question of whether religious practices are considered official or acceptable can still be disputed, as Winnifred Sullivan demonstrated beautifully in her book The Impossibility of Religious Freedom. The narrowness of the definition may present problems for new groups that identify themselves as “religion”, but are not recognizable as such to the court.

An example that comes to mind is Wicca. A tradition that emerged in the 1950s and spearheaded by retired civil servant Gerald Gardner, Wicca is an un-institutionalized earth-based new religious movement that focuses on the immanence of the divine in nature. Wicca has no official tenets of faith, no designated clergy or standard ritual format, and no fixed location of worship. Wiccan groups have had considerable difficulty proving to the government (Canadian or American) that they are legitimately religious, for these reasons.

When determining whether Wicca is a religion in the eyes of the law, the semantics of “religion” are incredibly important. The large majority of Wiccan groups who qualified for tax exemption in the United States designate themselves “churches”, or describe themselves using words like “faith” and “beliefs”. In Roberts et al. v Ravenwood Church of Wicca, the granting of tax exemption for religious reasons was delayed by Justice Jordan, dissenting, who stated:

While the majority opinion states that the Wiccan church does not believe in the devil, I do not believe it conforms to the traditional concept of a religion as embraced in the preamble of our State Constitution and as expressed in the Pledge of Allegiance to the flag of the United States. This nation was founded “under God,” not the “karmic circle.”

If guarantees to “freedom of religion” are granted only if a person’s religion is recognized, yet the definition of “religion” relies on Christian rhetoric, are the provisions really ensuring freedom of religion? Should provisions for “religion” exist at all? These are questions I will examine in more detail in my upcoming Master’s thesis.

The work of scholars in critical religion may indeed concentrate on the semantics of “religion”, but it is far from being “merely” an academic issue. The meaning of the word “religion” and the language used to regulate that definition are at the forefront of the constitutional cases about new religious movements. While it is perhaps unlikely that critical religion will prompt an amendment of provisions for “freedom of religion”, the continued work of scholars in the field may inform those expert witnesses called to consult in these cases, and thus help shape the legal understanding of human rights in the process.

9 thoughts on “Law, Critical Religion, and the Importance of Semantics”

Javier Oliva and I have a joint article on religious dress coming out in “European Public Law” that touches obliquely on this issue.

The problem, as it strikes us, is this: in the extreme case it is virtually impossible for a court to separate manifestation from doctrine and belief (in spite of the fact that courts in England and Wales are extremely reluctant to get involved in doctrinal issues at all). Moreover, the overwhelming majority of UK judges – even if they have no faith at all – have been brought up broadly within the Judaeo-Christian tradition so, inevitably, they are more familiar with Judaeo-Christian values and traditions than with those of, say, Islam or Sikhism.

So how can the secular authorities decide what Muslims, Sikhs, Hindus or Wiccans (or for that matter Christians not of their own persuasion) should be expected or bound to wear in order to conform to their beliefs? A court can seek an expert opinion on the matter as it did in Begum, R (o. a. o.) v Denbigh High School [2006] UKHL 15 (though, it should be noted, from a Professor in Religions and Education rather than from a Muslim); but even that assumes that there is a settled expert consensus about the centrality of the particular manifestation at issue – and that is in itself problematical.

On the matter of dress I take the view that the law should not discriminate on the grounds of religion, so that for instance banning the burkha should be unacceptable.

What is acceptable is banning face coverings (whether it be a full face motor cycle helmet of a burkha) in certain locations such a banks.

As to Sikhs and motorcycle helmets, again I’d allow anyone the option of wearing a turban or a motorcycle helmet. I wouldn’t allow an exemption based on the religion or race that a person claims to be a member of.

It’s an interesting debate, and one I’m not quite settled on. The issue of safety or consistency with regards to personal identification, versus the right to freedom of religion and religious expression, forms (as far as I can see) a large chunk of case law about religion.

My question, I guess, would be: if we make concessions for the sake of religion, on what grounds do we do so? Is it because religious behaviour and belief constitute an aspect of someone’s life that is not easily discarded or circumvented? If this is the case, why do we not make concessions for people whose moral or ideological commitments (which may not qualify as “religion” in the eyes of the law) are equally important to them?

I agree. There are several issues with the whole idea of religion being a legal concern. Not only is it difficult to determine if a group’s practices are “religious” or not, but there is also the question of whether these practices are viewed as acceptable and condoned by a larger religious authority, and how this affects the court’s perception of the legitimacy of a religious freedom claim.. Winnifred Sullivan pointed this out well in “The Impossibility of Religious Freedom” and the case City of Boca Raton v. Boca Villa Corp., 371 So.2d 154 (1979).

I think it’s incredibly problematic that courts deem practices only “really religious” if they are tied to institutions or certified by scholars of religious studies, many of whom are deeply imbedded in a Christianized framework by virtue of their existence or employment.

Thank you for an interesting post, which sheds light on a very important issue that is often overlooked, not least in human rights activist circles, where the concept of freedom of religion is commonly taken to be self-evident.

However, I do get a bit curious as to your own delineation of religion – you describe Wicca as a ‘new religious movement’ – but what is it about Wicca that qualifies this distinction? Also, if religion cannot be satisfactorily handled in the legal system, what is the alternative? Should we simply single out religion as non-legalizable? After all, discerning the character of people’s motivations and intentions is a concern for most legal areas, and not specific to cases concerning religion.

Thank you for an interesting post on a very important topic – the idea that the freedom of religion and attendant laws on religion are somehow self-evident is quite widespread, and the important reminder that most of these laws work from an implicit Christian (and Protestant) template, at least in the European and US American context, is often overlooked.

However, I am a bit curious about two issues with your blog post: First, what is your own conceptualization of religion? You call Wicca a ‘new religious movement’, but what is it about Wicca that qualifies to this label? And second, should the law be expanded to accommodate this more broad conceptualization of religion, or should it rather stop dealing with religion altogether, as some authors seem to suggest?

After all, law is not the academy, but more like a power tool to control society. Hence, it makes sense for legislators and the judiciary to draw on whichever concepts of religion that make sense to the populace ruled by the law in question. Problems arise, then, first and foremost in pluralist societies where this issue is contested (which means most of the world), and in the creation of international law, which has to fashion a one-size-fits-all conceptualization of religion (which means a concept generalized beyond applicability).

Thanks for your comment! I completely agree that the idea of “freedom of religion” is treated as self-evident, which is why I think it is especially important to examine the implications of that acceptance.

To clarify, my own conceptualization of “religion” is tied to the use of the word, in academic circles and beyond. I label Wicca as a “religion” or “new religious movement” because, in cases regarding religious freedom, members of Wiccan groups actively identify as members of a “religion”, and the court addresses the issue in relation to that word. I don’t think there is an objective way of distinguishing “religion” (as a universal phenomenon) from non-religion… which is why its use in the courtroom presents such a problem. I’m interested in “religion” as a modern Western category, and not as an objective object of study in itself.

Your second question is the toughest one. A few authors have addressed it, but none more clearly (I think) than Micah Schwartzman (see his article “What if Religion Isn’t Special?”). He argues, and I agree, that subsuming “freedom of religion” into “freedom of conscience” is a more just and equitable way to prioritize individuals’ ideological commitments, “religious” or otherwise. The category is so vague that the determination of “religion” is almost solely an exercise in power, one that is tied

In light of the increased plurality of communities on an international scale, I think that a one-size-fits-all conceptualization of “religion” in human rights codes would only serve to give power to a Western majority. The category is so vague that the determination of “religion” is almost solely an exercise in power, one that is tied, historically and linguistically, to Christianity. “Religion”, as a legal category, serves the Western Christian majority more than it does minority groups (the latter of which is, supposedly, the purpose of the category’s existence).

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